[Federal Register: March 17, 2010 (Volume 75, Number 51)][Rules and Regulations] [Page 12681-12686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr10-15]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915, and 1926
[Docket No. OSHA-H054a-2006-0064]
RIN 1218-AC43
Revising the Notification Requirements in the Exposure
Determination Provisions of the Hexavalent Chromium Standards
AGENCY: Occupational Safety and Health Administration (OSHA);
Department of Labor.
ACTION: Direct final rule.
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SUMMARY: On February 28, 2006, OSHA published a final rule for
Occupational Exposure to Hexavalent Chromium (Cr(VI). Public Citizen
Health Research Group (Public Citizen) and other parties petitioned for
review of the standard in the United States Court of Appeals for the
Third Circuit. The court denied the petitions for review on all but one
issue. The Third Circuit remanded the employee notification
requirements in the standard's exposure determination provisions for
further consideration. More specifically, the court directed the Agency
to either provide an explanation for its decision to limit employee
notification requirements to circumstances in which Cr(VI) exposures
exceed the permissible exposure limit (PEL) or take other appropriate
action with respect to that paragraph of the standard. After reviewing
the rulemaking record on this issue, and reconsidering the provision in
question, OSHA has decided to revise the notification requirements, by
means of this direct final rule, to require employers to notify
employees of the results of all exposure determinations.
DATES: This direct final rule will become effective on June 15, 2010
unless significant adverse comment is submitted (transmitted,
postmarked, or delivered) by April 16, 2010. Comments to this direct
final rule, hearing requests, and other information must be submitted
(transmitted, postmarked, or delivered) by April 16, 2010. All
submissions must bear a postmark or provide other evidence of the
submission date.
ADDRESSES: You may submit comments, hearing requests, and other
materials, identified by Docket No. OSHA-H054a-2006-0064, by any of the
following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for submitting
comments.
Facsimile: OSHA allows facsimile transmission of comments and
hearing requests that are 10 pages or fewer in length (including
attachments). You can fax these documents to the OSHA Docket Office at
(202) 693-1648; hard copies of these documents are not required.
Instead of transmitting facsimile copies of attachments that supplement
these documents (e.g., studies, journal articles), commenters must
submit these attachments to the OSHA Docket Office, Technical Data
Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution
Ave., NW., Washington, DC 20210. These attachments must clearly
identify the sender's name, the date, and the Docket No. (OSHA-H054a-
2006-0064) so that the Agency can attach them to the appropriate
document.
Regular mail, express delivery, hand (courier) delivery, and
messenger service: Submit comments and any additional material to the
OSHA Docket Office, Docket No. OSHA-H054a-2006-0064 or RIN No. 1218-
AC43, Technical Data Center, Room N-2625, OSHA, U.S. Department of
Labor, 200 Constitution Ave., NW., Washington, DC 20210; telephone:
(202) 693-2350. (OSHA's TTY number is (877) 889-5627.) Note that
security procedures may delay OSHA's receipt of comments and other
written materials submitted by regular mail. Please contact the OSHA
Docket Office for information about security procedures concerning
delivery of materials by express delivery, hand delivery, and messenger
service. Deliveries (hand, express mail, messenger service) are
accepted during the Docket Office's normal business hours, 8:15 a.m. to
4:45 p.m., e.t.
Instructions: All submissions must include the Agency name and the
OSHA docket number (i.e., OSHA Docket No. OSHA-H054a-2006-0064).
Comments and other material, including any personal information, will
be placed in the public docket without revision, and will be available
online at http://www.regulations.gov. Therefore, the Agency cautions
commenters about submitting statements they do not want made available
to the public or submitting comments that contain personal information
(either about themselves or others) such as Social Security numbers,
birth dates, and medical data.
Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov or to the OSHA Docket Office
at the address above. Documents in the docket are listed in the http://
www.regulations.gov index; however, some information (e.g., copyrighted
material) is not publicly available to read or download through this
Web site. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office. Contact
the OSHA Docket Office for assistance in locating docket submissions.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries contact Ms. Jennifer Ashley, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999. For
technical inquiries, contact Maureen Ruskin, Office of Chemical
Hazards-Metals, Directorate of Standards and Guidance, Room N-3718,
OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-1950; fax: (202) 693-1678.
Copies of this Federal Register notice are available from the OSHA
Office of Publications, Room N-3101, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1888. Electronic copies of this Federal Register notice, as well as
news releases and other relevant documents, are available at OSHA's Web
page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Request for Comment
II. Direct Final Rulemaking
III. Discussion of Changes
IV. Legal Considerations
V. Final Economic Analysis and Regulatory Flexibility Act
Certification
VI. OMB Review Under the Paperwork Reduction Act of 1995
VII. Federalism
VIII. State Plan States
IX. Unfunded Mandates Reform Act
X. List of Subjects for 29 CFR Parts 1910, 1915, and 1926 Authority
and Signature
I. Request for Comment
OSHA requests comments on all issues related to this action
including economic or other regulatory impacts of this action on the
regulated community. If OSHA receives no significant adverse comment,
OSHA will publish a Federal Register document confirming the effective
date of this direct final rule and withdrawing the companion proposed
rule published in the Proposed Rules section of today's Federal
Register. Such confirmation may include minor stylistic or technical
changes to the document. For the purpose of judicial review, OSHA views
the date of confirmation of the effective date of this direct final rule
as the date of promulgation.
II. Direct Final Rulemaking
In direct final rulemaking, an agency publishes a direct final rule
in the Federal Register with a statement that the rule will go into
effect unless significant adverse comment is received within a
specified period of time. An identical proposed rule is often published
at the same time. If a significant adverse comment is not submitted in
response to the direct final rule, the rule goes into effect. If a
significant adverse comment is received, the agency withdraws the
direct final rule and treats such comment as a response to the proposed
rule. Direct final rulemaking is typically used where an agency
anticipates that a rule will not be controversial. Examples include
minor substantive changes to regulations, direct incorporations of
mandates from new legislation, and in this case, minor changes to
regulations resulting from a judicial remand.
For purposes of this direct final rule, a significant adverse
comment is one that explains why the amendments being made to OSHA's
standards would be inappropriate. In determining whether a comment
necessitates withdrawal of the direct final rule, the Agency will
consider whether the comment raises an issue serious enough to warrant
a substantive response in a notice-and-comment process. OSHA will not
consider a comment recommending an additional amendment to be a
significant adverse comment unless the comment states why the direct
final rule would be ineffective without the addition. If timely
significant adverse comment is received, OSHA will publish a notice of
significant adverse comment in the Federal Register withdrawing this
direct final rule no later than May 17, 2010.
OSHA is publishing a companion proposed rule along with this direct
final rule. The comment period for the proposed rule runs concurrently
with that of the direct final rule. Comments received on the companion
proposed rule will also be treated as comments regarding the direct
final rule. Likewise, significant adverse comment submitted to the
direct final rule will also be considered as comment to the companion
proposed rule.
If OSHA receives a significant adverse comment on this direct final
rule, the Agency will publish a timely withdrawal of this direct final
rule and proceed with the companion proposed rule that was published in
the Proposed Rule's section of today's Federal Register. In the event
OSHA withdraws the direct final rule because of significant adverse
comment, the Agency will consider all comments received when it
continues with the proposed rule. OSHA will then decide whether to
publish a new final rule.
OSHA determined that the subject of this rulemaking is suitable for
direct final rulemaking. This amendment to the standard does not
compromise the safety or health of employees. Indeed, OSHA anticipates
that employee protection will be enhanced by the amended standard,
which will require employers to notify affected employees of all
exposure determination results. This amendment to the standard will not
alter any other substantive requirements of the exposure determination
provisions, i.e., the amendment does not change any of the requirements
for when or how employers must determine their employees' Cr(VI)
exposures. The amendment made herein simply expands the circumstances
in which employers must notify affected employees, either through
posting or direct written notice, of the results of required exposure
determinations. The burden on the regulated community as a result of
this change will not be significant. For these reasons, OSHA does not
expect objections from the public.
III. Discussion of Changes
Paragraph (d) of the chromium (VI) standard (29 CFR 1910.1026, 29
CFR 1915.1026, 29 CFR 1926.1126) (71 FR 10100) is titled "Exposure
Determination" and requires employers to determine the 8-hour time-
weighted-average exposure for each employee exposed to Cr(VI). This can
be done through scheduled air monitoring (paragraph (d)(2)) or on the
basis of any combination of air monitoring data, historical monitoring
data, and/or objective data (paragraph (d)(3)). As originally
promulgated, paragraph (d)(4) required the employer to notify affected
employees of any exposure determinations indicating exposures in excess
of the PEL. The employer could satisfy this requirement either by
posting the exposure determination results in an appropriate location
accessible to all affected employees or by notifying each affected
employee in writing of the results of the exposure determination. Under
the general industry standard, notice has to be provided within 15 work
days, and in construction and maritime employers have 5 work days to
provide the required notice.
The requirement to notify employees of exposures above the exposure
limit was consistent with Section 8(c)(3) of the Occupational Safety
and Health Act of 1970 (OSH Act), which requires employers "to
promptly notify any employee who has been or is being exposed to toxic
materials or harmful physical agents * * * at levels which exceed those
prescribed by an applicable occupational safety and health standard,"
29 U.S.C. 657(c)(3). The promulgated notice requirement was more
limited than the proposed chromium standard (69 FR 59306, Oct. 4,
2004), however. The proposed standard would have required employers to
notify affected employees of all exposure determinations, irrespective
of the results. The broader, proposed notice requirement mirrored
similar provisions in OSHA's other substance-specific health standards
including, but not limited to, lead (29 CFR 1910.1025(d)(8)(i));
arsenic (29 CFR 1910.1018(e)(5)(i)); methylenedianiline (29 CFR
1910.1050(e)(7)(i)); butadiene (29 CFR 1910.1051(d)(7)(i)); and
methylene chloride (29 CFR 1910.1052(d)(5)(i)). All of those other
standards require employers to notify employees of all exposure
monitoring results.
Public Citizen and other parties petitioned for review of the final
chromium standard. (See Public Citizen Health Research Group v. Dept.
of Labor, 557 F.3d 165 (3d Cir. 2009)). Part of Public Citizen's
petition involved a challenge to paragraph (d)(4). Public Citizen
argued that OSHA's decision to depart from the proposed rule and limit
the employee notification requirement to exposures above the PEL was
arbitrary and unexplained. Although OSHA defended the final
notification provision on many grounds, including that it was
consistent with Section 8(c)(3) of the OSH Act, the Third Circuit
granted Public Citizen's petition for review with regard to the
employee notification requirement (while denying all other challenges
to the standard). See Public Citizen, 557 F.3d at 185-86. The court
found that "OSHA failed to provide a statement of reasons for
departing from the proposed standard and past practice in other
standards," id. at 186, and remanded paragraph (d)(4) to the agency
"for further consideration and explanation." Id. at 191. The court
"expect[ed] . OSHA [to] * * * act expeditiously in either providing an
explanation for its chosen notification requirements or taking such
further action as may be appropriate." Id. at 192.
In response to the Third Circuit's decision, OSHA re-examined the
record. The Agency did not find any comments or testimony in the record
on the narrow issue of whether employees should be notified of all
exposure determinations. OSHA also confirmed that all of its other
substance-specific health standards have broader notification
requirements than the 2006 Cr(VI) standard, i.e., they require
employers to notify employees of exposures even below the relevant
exposure limits. See, e.g., lead (29 CFR 1910.1025(d)(8)(i)); arsenic
(29 CFR 1910.1018(e)(5)(i)); methylenedianiline (29 CFR
1910.1050(e)(7)(i)); butadiene (29 CFR 1910.1051(d)(7)(i)); and
methylene chloride (29 CFR 1910.1052(d)(5)(i)).
Upon reconsidering this issue, OSHA has decided to take action, by
means of this notice, to amend the notification requirements in the
Cr(VI) standards. Consistent with the language in the proposed chromium
standard, as well as past practice in OSHA's other substance-specific
health standards, the amended provision requires employers to notify
affected employees of all exposure determinations, whether above or
below the PEL. OSHA is not changing any other requirements in the
exposure determination or notification provisions. For example, the
number of work days employers have to provide notice to employees will
remain unchanged.
In the preamble to the final Cr(VI) standard, OSHA concluded that
employees were exposed to significant risk at the previous PEL for
Cr(VI) of 52 [mu]g/m \3\ and that lowering the PEL to 5 [mu]g/m \3\
substantially reduced that risk. 71 FR at 10223-25. Feasibility
considerations led OSHA to set the PEL at 5 [mu]g/m \3\, even though
the Agency recognized that significant risk remained at lower levels.
See id. at 10333-39. For example, OSHA still expected 2.1-9.1 excess
lung cancer deaths per 1000 workers with a lifetime of regular exposure
to Cr(VI) at 1 [mu]g/m \3\. See id. at 10224 (Table VII-1). OSHA
explained in the preamble to the final rule that the ancillary
provisions of the standard, e.g., monitoring and medical surveillance
requirements, were expected to reduce the residual risk remaining at
the final PEL. Id. at 10334. OSHA believes that this amendment to the
notification requirement will, in addition to the other ancillary
requirements, further reduce the risk of health impairment associated
with Cr(VI) exposures below 5 [mu]g/m\3\.
Notifying employees of their exposures arms them with knowledge
that can permit and encourage them to be more proactive in working
safely to control their own exposures through better work practices and
by more actively participating in safety programs. As OSHA noted with
respect to its Hazard Communication Standard: "Workers provided the
necessary hazard information will more fully participate in, and
support, the protective measures instituted in their workplaces." 59
FR 6126, 6127 (Feb. 9, 1994). Exposures to Cr(VI) below the PEL may
still be hazardous, and making employees aware of such exposures may
encourage them to take whatever steps they can, as individuals, to
reduce their exposures as much as possible.
This may be of particular significance for welders, who make up
almost half of the employees affected by the chromium standard. See 71
Fr at 10257-59 (Table VIII-3). Welders have a unique ability to control
their own Cr(VI) exposures by making simple changes in their work
practices, e.g., changes in technique, posture or in the proper
positioning of portable local exhaust ventilation (LEV). See, e.g.,
Shaw Environmental, Inc., Cost and Economic Impact Analysis of a Final
OSHA Standard for Hexavalent Chromium, Chapter 2-Welding, Docket No.
OSHA-H054a-2006-0064, Document No. 2541, page 2-156 ("Another
environmental variable is the variation in welding technique and
posture used by different welders. Small differences in the welder's
body position in relation to the welding task, the welder's body
position in relation to the weld, and any LEV may create large
differences in an individual's fume exposure. Welder information and
training should reduce the occurrence of this poor work practice.")
IV. Legal Considerations
The purpose of the OSH Act is "to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources." 29 U.S.C. 651(b). To
achieve this goal, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards. 29
U.S.C. 655(b), 658. A safety or health standard is a standard that
"requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment." 29 U.S.C. 652(8). A standard is reasonably necessary or
appropriate when a significant risk of material harm exists in the
workplace and the standard would substantially reduce or eliminate that
workplace risk. See Industrial Union Department, AFL-CIO v. American
Petroleum Inst., 448 U.S. 607 (1980) (plurality opinion).
This direct final rule will not diminish the employee protections
put into place by the standard being amended. In fact, the amendment is
expected to enhance the health benefits of the Cr(VI) standard by
providing employees with more information about their exposure levels.
Because OSHA previously determined that the Cr(VI) standard
substantially reduces a significant risk, 71 FR at 10223-25, it is
unnecessary for the Agency to make additional findings on risk for
purposes of the minor amendment being made to the exposure
determination provisions. See, e.g., Public Citizen Health Research
Group v. Tyson, 796 F.2d 1479, 1502 n.16 (DC Cir. 1986) (rejecting the
argument that OSHA must "find that each and every aspect of its
standard eliminates a significant risk.")
V. Final Economic Analysis and Regulatory Flexibility Act Certification
This direct final rule is not economically significant within the
context of Executive Order ("E.O.") 12866 (58 FR 51735 (Oct. 4,
1993)), nor is it a "major rule" under Section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996 ("SBREFA"; 5
U.S.C. 804).
As described previously, this action simply amends the notification
requirement in the Cr(VI) rule. As originally promulgated, the standard
required employers to notify employees of overexposures. This amendment
requires employers to notify employees of all exposure determinations,
irrespective of exposure levels.
In OSHA's Final Economic and Regulatory Flexibility Analysis (FEA)
for the final standard (Docket No. OSHA-H054a-2006-0064, Document No.
2524), the Agency carried forward the methodology that it used to
derive cost estimates for the broader notification requirement in the
proposed Cr(VI) standard. That cost methodology is described in detail
in the final contractor report supporting OSHA's FEA. See (Docket No.
OSHA-H054a-2006-0064, Document No. 2577, pages III-5--III-16). There,
OSHA's contractor, Shaw Environmental, Inc. (Shaw), conservatively
assigned costs assuming that employers would be notifying all affected
employees of all exposure determinations, irrespective of exposure
level. OSHA included those notification costs in the costs for Exposure
Monitoring that were presented in tables in the executive summary and
cost chapters of the FEA. See, for example, Docket No. OSHA-H054a-2006-
0064, Document Nos. 2524 (page ES-48, Table ES-4) and 2528 (page IV-11, Table IV-4).
Among the notification costs included in the FEA are information
collection expenditures subject to the Paperwork Reduction Act of 1995
(PRA-95). OSHA's analysis of the paperwork burden of the amended
notification provision is presented in the next section and details the
incremental expense, in terms of time and labor costs, that employers
will likely incur as a result of this revision to the standard. As
described in that section, notification costs will increase by $1.5
million and therefore will total approximately $2.1 million, up from
$0.5 million as reported in the 2006 Paperwork statement accompanying
the final rule.
Because OSHA assigned costs for employers notifying workers whose
exposure levels were below the PEL, and who therefore were not actually
subject to the notification requirement in the final standard, that
methodology originally had the effect of overestimating costs and
impacts relative to the actual burden facing employers. With the
amendment to the notification requirement, however, the FEA's cost
estimates will more accurately represent the costs employers are
expected to incur. Because in the original FEA those costs were judged
to be economically feasible, OSHA has concluded that this revision,
which imposes no additional burden from the standpoint of the economic
analysis, is also feasible.
OSHA is not changing any of the monitoring or exposure
characterization requirements in the final standard. The amended
notification provision, when compared to the standard as originally
promulgated, will simply require employers to post more names or send
more individual notices after exposure determinations are made. In
OSHA's view, these costs are not significant and, as indicated above,
are economically feasible. Therefore, OSHA certifies that this action
will not have a significant impact on a substantial number of small
entities and the Agency will not have to prepare a regulatory
flexibility analysis for this rulemaking under SBREFA (5 U.S.C. 601 et
seq.).
VI. OMB Review Under the Paperwork Reduction Act of 1995
The direct final rule amends a notification requirement that is
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA-95), 44 U.S.C. 3501 et seq.,
and OMB's regulations at 5 CFR part 1320. The information collection
requirements ("paperwork") currently contained in the Chromium VI
(Cr(VI)) standard are approved by OMB (Information Collection Request
(ICR), Chromium (VI) Standards for General Industry (29 CFR 1910.1026),
Shipyard Employment (29 CFR 1915.1026), and Construction (29 CFR
1926.1126)), under OMB Control Number 1218-0252. The Department notes
that a Federal agency cannot conduct or sponsor a collection of
information unless it is approved by OMB under the PRA and displays a
currently valid OMB control number, and the public is not required to
respond to a collection of information requirement unless it displays a
currently valid OMB control number. Also, notwithstanding any other
provisions of law, no person shall be subject to penalty for failing to
comply with a collection of information requirement if the requirement
does not display a currently valid OMB control number.
On June 22, 2009, OSHA published a preclearance Federal Register
Notice, Docket No. OSHA-2009-0015, as specified in PRA-95 (44 U.S.C.
3506(c)(2)(A)), allowing the public 60 days to comment on a proposal to
extend OMB's approval of the information collection requirements in the
Cr(VI) standard (74 FR 29517). This Notice also served to inform the
public that OSHA was considering revising the notification requirements
in the exposure determination provision in response to the court-
ordered remand. At that point OSHA estimated the new burden hours and
costs that would result from this potential amendment to the standard,
and the public had sixty days to comment on those estimates in
accordance with the PRA, 44 U.S.C. 3506(c)(2). OSHA estimated that a
requirement to notify employees of all exposure determination results
would result in an increase of 62,575 burden hours and would increase
employer cost, in annualized terms, by $1,526,731.
The pre-clearance Federal Register comment period closed on August
22, 2009. OSHA did not receive public comments on that notice. On
October 30, 2009, DOL published a Federal Register notice announcing
that the Cr(VI) ICR had been submitted to OMB (74 FR 56216) for review
and approval, and that interested parties had until November 30, 2009,
to submit comments to OMB on that submission. No comments were received
in response to that Notice either.
Now that OSHA is amending the Cr(VI) standard via this direct final
rule, the Agency will provide an additional thirty days for the public
to comment on the estimated paperwork implications of the revised
notification requirements.
Inquiries: You may obtain an electronic copy of the complete Cr(VI)
ICR at http://www.reginfo.gov/public/do/PRAMain, scroll under
"Inventory of Approved Collections, Collections Under Review, Recently
Approved/Expired" to "Department of Labor (DOL)" to view all of the
DOL's ICRs, including those ICRs submitted for rulemakings. The
Department's ICRs are listed by OMB control number. The Cr(VI) OMB
Control Number is 1218-0252. To make inquiries, or to request other
information, contact Todd Owen, Directorate of Standards and Guidance,
OSHA, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210; telephone (202) 693-2222.
Submitting comments: Members of the public who wish to comment on
the estimated burden hours and costs attributable to the amendment to
the notification provision, as described in the Cr(VI) ICR, may send
their written comments to the Office of Information and Regulatory
Affairs, Attn: OSHA Desk Officer (RIN 1218-AC43), Office of Management
and Budget, Room 10235, 725 17th Street, NW., Washington, DC 20503. The
Agency encourages commenters to also submit their comments on these
paperwork requirements to the rulemaking docket (Docket No. OSHA-H054a-
2006-0064). For instructions on submitting these comments to the
rulemaking docket, see the sections of this Federal Register notice
titled DATES and ADDRESSES.
VII. Federalism
OSHA reviewed this direct final rule in accordance with the
Executive Order on Federalism (Executive Order 13132, 64 FR 43255,
August 10, 1999), which requires that Federal agencies, to the extent
possible, refrain from limiting State policy options, consult with
States prior to taking any actions that would restrict State policy
options, and take such actions only when clear constitutional authority
exists and the problem is national in scope. Executive Order 13132
provides for preemption of State law only with the expressed consent of
Congress. Any such preemption is to be limited to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970
("OSH Act"; 29 U.S.C. 651 et seq.), Congress expressly provides that
States may adopt, with Federal approval, a plan for the development and
enforcement of occupational safety and health standards; States that
obtain Federal approval for such a plan are referred to as "State Plan States"
(29 U.S.C. 667). Occupational safety and health standards developed by State
Plan States must be at least as effective in providing safe and healthful
employment and places of employment as the Federal standards. Subject to
these requirements, State Plan States are free to develop and enforce under
State law their own requirements for safety and health standards.
This direct final rule complies with Executive Order 13132. In
States without OSHA approved State Plans, any standard developed from
this direct final rule would limit State policy options in the same
manner as every standard promulgated by OSHA. In States with OSHA
approved State Plans, this rulemaking does not significantly limit
State policy options.
VIII. State Plan States
When Federal OSHA promulgates a new standard or more stringent
amendment to an existing standard, the 27 States and U.S. Territories
with their own OSHA approved occupational safety and health plans
("State Plan States") must amend their standards to reflect the new
standard or amendment, or show OSHA why such action is unnecessary,
e.g., because an existing State standard covering this area is "at
least as effective" as the new Federal standard or amendment. 29 CFR
1953.5(a). The State standard must be at least as effective as the
final Federal rule, must be applicable to both the private and public
(State and local government employees) sectors, and must be completed
within six months of the promulgation date of the final Federal rule.
When OSHA promulgates a new standard or amendment that does not impose
additional or more stringent requirements than an existing standard,
State Plan States are not required to amend their standards, although
the Agency may encourage them to do so. The 27 States and U.S.
Territories with OSHA approved occupational safety and health plans
are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky,
Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and Wyoming; Connecticut, Illinois, New Jersey,
New York, and the Virgin Islands have OSHA approved State Plans that
apply to State and local government employees only.
With regard to this direct final rule, the amended requirement
would result in a somewhat more stringent requirement in regulations
for Cr(VI) exposure. Therefore, States and Territories with approved
State Plans must adopt comparable amendments to their standards for
hexavalent chromium within six months of the promulgation date of this
amendment unless they demonstrate that such a change is not necessary
because their existing standards are already the same as or at least as
effective as the amended Cr(VI) standard.
IX. Unfunded Mandates Reform Act
OSHA reviewed this direct final rule according to the Unfunded
Mandates Reform Act of 1995 ("UMRA"; 2 U.S.C. 1501 et seq.) and
Executive Order 12875 (58 FR 58093). As discussed above in Section V
("Economic Analysis and Regulatory Flexibility Certification") of
this preamble, the Agency determined that this direct final rule does
not impose significant additional costs on any private-or public-sector
entity. Accordingly, this direct final rule does not require
significant additional expenditures to either public or private
employers.
As noted above under Section VIII ("State-Plan States"), the
Agency's standards do not apply to State and local governments except
in States that have elected voluntarily to adopt a State Plan approved
by the Agency. Consequently, this direct final rule does not meet the
definition of a "Federal intergovernmental mandate" (see Section
421(5) of the UMRA (2 U.S.C. 658(5))). Therefore, for the purposes of
the UMRA, the Agency certifies that this direct final rule does not
mandate that State, local, or Tribal governments adopt new, unfunded
regulatory obligations, or increase expenditures by the private sector
of more than $100 million in any year.
List of Subjects
29 CFR Part 1910
Exposure determination, General industry, Health, Hexavalent
chromium Cr(VI)), Notification of determination results to employees,
Occupational safety and health.
29 CFR Part 1915
Exposure determination, Health, Hexavalent chromium (Cr(VI)),
Notification of determination results to employees, Occupational safety
and health, Shipyard employment.
29 CFR Part 1926
Construction, Exposure determination, Health, Hexavalent chromium
(Cr(VI)), Notification of determination results to employees,
Occupational safety and health.
Authority and Signature
David Michaels, PhD MPH, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210, directed the
preparation of this direct final rule. The Agency is issuing this rule
under Sections 4, 6, and 8 of the Occupational Safety and Health Act of
1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order 5-2007 (72
FR 31159), and 29 CFR part 1911.
Signed at Washington, DC, on March 11, 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Amendments to Standards
0
For the reasons stated in the preamble, OSHA is amending 29 CFR parts
1910, 1915, and 1926 to read as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS [AMENDED]
Subpart A--General
0
1. The authority citation for subpart A of part 1910 is revised to read
as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as
applicable.
Sections 1910.7, 1910.8, and 1910.9 also issued under 29 CFR
Part 1911. Section 1910.7(f) also issued under 31 U.S.C. 9701, 29
U.S.C. 9a, 5 U.S.C. 553; Pub. L. 106-113 (113 Stat. 1501A-222); and
OMB Circular A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
Subpart Z--Toxic and Hazardous Substances
0
2. The authority citation for subpart Z of Part 1910 is revised to read
as follows:
Authority: Secs. 4, 6, 8 of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as applicable; and 29
CFR part 1911.
All of subpart Z issued under section 6(b) of the Occupational
Safety and Health Act of 1970, except those substances that have
exposure limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR
1910.1000. The latter were issued under section 6(a) (29 U.S.C.
655(a)).
Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5
U.S.C. 553, but not
[[Page 12686]]
under 29 CFR part 1911 except for the arsenic (organic compounds),
benzene, cotton dust, and chromium (VI) listings.
Section 1910.1001 also issued under section 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 3704) and 5 U.S.C.
553.
Section 1910.1002 also issued under 5 U.S.C. 553, but not under
29 U.S.C. 655 or 29 CFR part 1911.
Sections 1910.1018, 1910.1029, and 1910.1200 also issued under
29 U.S.C. 653.
Section 1910.1030 also issued under Public Law 106-430, 114
Stat. 1901.
0
3. Section 1910.1026 is amended by revising paragraph (d)(4)(i), to
read as follows:
Sec. 1910.1026 Chromium (VI)
* * * * *
(d) * * *
(4) * * *
(i) Within 15 work days after making an exposure determination in
accordance with paragraph (d)(2) or paragraph (d)(3) of this section,
the employer shall individually notify each affected employee in
writing of the results of that determination or post the results in an
appropriate location accessible to all affected employees.
* * * * *
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT [AMENDED]
Subpart A--General Provisions
0
4. The authority citation for part 1915 will continue to read as
follows:
Authority: Section 41, Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 941); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; 29 CFR Part 1911.
Subpart Z--Toxic and Hazardous Substances
0
5. Section 1915.1026, is amended by revising paragraph (d)(4)(i), to
read as follows:
Sec. 1915.1026 Chromium (VI)
* * * * *
(d) * * *
(4) * * *
(i) Within 5 work days after making an exposure determination in
accordance with paragraph (d)(2) or paragraph (d)(3) of this section,
the employer shall individually notify each affected employee in
writing of the results of that determination or post the results in an
appropriate location accessible to all affected employees.
* * * * *
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION [AMENDED]
Subpart A--General
0
6. The authority citation for subpart A of part 1926 is revised to read
as follows:
Authority: Section 3704 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701 et seq.); sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, and
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; and 29 CFR part 1911.
Subpart Z--Toxic and Hazardous Substances
0
7. The authority citation for subpart Z of part 1926 is revised to read
as follows:
Authority: Section 3704 of the Contract Work Hours and Safety
Standards Act (40 U.S.C. 3701 et seq.); Sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Orders 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-
2000 (62 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160) as
applicable; and 29 CFR part 11.
Section 1926.1102 of 29 CFR Not Issued Under 29 U.S.C. 655 or 29 CFR
Part 1911; Also Issued Under 5 U.S.C. 553
0
8. Section1926.1126, is amended by revising paragraph (d)(4)(i), to
read as follows:
Sec. 1926.1126 Chromium (VI)
* * * * *
(d) * * *
(4) * * *
(i) Within 5 work days after making an exposure determination in
accordance with paragraph (d)(2) or paragraph (d)(3) of this section,
the employer shall individually notify each affected employee in
writing of the results of that determination or post the results in an
appropriate location accessible to all affected employees.
* * * * *
[FR Doc. 2010-5734 Filed 3-16-10; 8:45 am]
BILLING CODE 4510-26-P
